Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 388 (CAL)

Ajit Kr. Sinha v. State of West Bengal

2010-04-09

PRANAB KUMAR CHATTOPADHYAY, PRANAB KUMAR DEB

body2010
JUDGMENT Re: CAN 2847 of 2010 1. This application has been filed in connection with the appeal preferred from the judgment and order dated 22nd February, 2010 whereby and whereunder a learned Judge of this Court has held that service upon the Government Pleader attached to the High Court does not dispense with the requirements of service of copy of the writ petition as well as the notice upon the other respondents. 2. The learned Single Judge referred to and relied on a Division Bench judgment of this Court in the case of State of West Bengal & Ors. Vs. Arjun Kumar Izaddar & Ors., reported in 2005 (1) CLJ 102 . In the aforesaid judgment, the Division Bench was pleased to hold as hereunder: “……………It is true that our High Court Rules do directed service of a copy of the writ petition intended to be moved against the State to be served upon the Government Pleader attached to the High Court but such service does not dispense with service of the copy of the writ petition as well as the notice of moving the same upon the other respondents and an order passed only on service of copy of the writ petition upon the Government Pleader should therefore, be deemed to be an order made without notice to the respondents.” 3. This High Court has framed Rules relating to application under Article 226 of the Constitution of India. Rule 26 of the said Rules reads as under: “26. Save and except as provided in these rules, all applications for a Rule Nisi shall be made in the first instance before the Court on such day or days and at such time or times as may be fixed by the Court. An application under Article 226 shall not be moved and no prayer for interim order shall be entertained in a writ petition under Article 226 of the Constitution without serving copy of such petition alongwith all annexures upon the respondents to be bound by or affected by such interim order and without giving such party a reasonable opportunity to contest the same, without serving 48 hours’ prior notice along with a copy of the application under Article 226 of the Constitution, proposed to be moved, on the concerned respondent. Provided where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient; where the Central Government/Local Authority/Body/Corporation or any of its officers is a party service may also be made on the Standing Counsel for the Central Government/Local Authority or Body or Corporation notified to the Registrar in this behalf: Provided that the Court may for reasons recorded allow the moving of the application and entertain the prayer for such interim order without such notice, in which case, a copy of the application alongwith all annexures in support thereof, shall forthwith be served by the petitioner, upon the respondents against whom the interim order has been obtained: Provided that the provisions of Section 148A of the Code of Civil Procedure, 1908 shall mutatis mutandis apply to proceedings under Article 226. Such Caveats must be filed before an Officer nominated in this behalf by the Chief Justice: Provided further that an affidavit of service shall be filed showing compliance with these rules before the matter is taken up for hearing. The Court hearing such an application may issue a Rule Nisi or summarily reject the application or issue notice or give direction/directions or make such order thereon as it thinks fit. A Judge, for the reasons recorded, at the hearing or at any subsequent stage of the proceeding may make it returnable before a Division Bench or may while hearing the Rule, refer the same to the Division Bench for hearing.” 4. In the aforesaid rule, it has been mentioned that where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient. The relevant portion from the aforesaid Rule 26 is specifically quoted hereunder: “……Provided where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient;……..” 5. Undisputedly, the ‘State’ is always represented by its Officers/Authorities and all the orders are issued in the name of the State by its Officers. Therefore, under normal circumstances, State Government Lawyers represent not only the State, but also its Officers/Authorities. 6. For the aforementioned reasons, it has been specifically provided in the Rules that where the State Government is a party service on the Legal Remembrancer/Government Pleader will be sufficient. 7. Therefore, under normal circumstances, State Government Lawyers represent not only the State, but also its Officers/Authorities. 6. For the aforementioned reasons, it has been specifically provided in the Rules that where the State Government is a party service on the Legal Remembrancer/Government Pleader will be sufficient. 7. In the event, a State Government Lawyer is not authorised to represent any particular department of the State Government or its Authority, then in that event, it is the duty of the State Government Lawyer to clearly mention the same before the learned Judge so that in an appropriate case appropriate order can be issued directing service of notice upon the concerned Officer and the Department. Under normal circumstances, the State Government Lawyer will not only represent the ‘State’ but also its Officers and Authorities. 8. The Division Bench in the case of State of West Bengal & Ors. Vs. Arjun Kumar Izaddar & Ors. (Supra) specifically held that service upon the Government Pleader attached to the High Court does not dispense with service of the copy of the writ petition as well as the notice of moving the same upon the other respondents. In the aforesaid judgment, however, representation of the State Government Department by the Government Pleader attached to the High Court was neither argued nor considered. 9. This court also cannot ignore the specific provision of Rule 26 of the Rules framed by this court relating to application under Article 226 of the Constitution of India wherein it has been specifically provided that service on the Government Pleader will be sufficient where the State Government is a party. The language of the aforesaid Rule 26 is clear and unambiguous and the same does not require any further interpretation. The earlier judgment of the Division Bench in the case of State of West Bengal & Ors. Vs. Arjun Kumar Izaddar & Ors. (Supra) does not authorize the Government Pleader and/or State Government Advocate to disown the responsibility to represent the State Government Officers/Authorities who are responsible for the decision of the State Government impugned in the writ petition. 10. In our opinion for all practical purposes the action of the ‘State’ will mean and include the action taken by its Officers/Authorities. 11. ‘STATE’ cannot act in the abstract and, therefore, ‘STATE’ cannot be represented in absence of its Officers/Authorities. 10. In our opinion for all practical purposes the action of the ‘State’ will mean and include the action taken by its Officers/Authorities. 11. ‘STATE’ cannot act in the abstract and, therefore, ‘STATE’ cannot be represented in absence of its Officers/Authorities. Action of the ‘State’ cannot be adjudicated in isolation since ‘State’ acts through its Officers/Authorities. 12. Therefore, service upon the Government Pleader attached to the High Court will mean service upon the ‘State’ and its Officers and/or Authorities unless the State Government Lawyer refuses to represent any Officer/Authority before the Court in a particular case upon receiving specific instruction. It is also, however, not expected that the State Government and its Officers will be represented by different sets of Lawyers under normal circumstances. 13. Only to delay and/or drag the proceedings sometimes, aforesaid frivolous objection is raised on behalf of the State respondents which we cannot appreciate. The Officers/Authorities of the State Government are however, entitled to know all the informations in respect of a proceeding and, therefore, copies of the writ petition may be served directly together with appropriate notice upon the said Officers. On the other hand, in order to expedite the process, service can be made upon the learned Government Pleader attached with the High Court. If necessary, the learned Government Pleader or the State Government Advocate, as the case may be, can request the learned Judge to grant some time for taking necessary instructions from the concerned Officer/Authority but it is not expected that the Government Pleader or the State Government Advocate will refuse to represent the State Government Officers and/or Authorities without being specifically instructed by them to do so. 14. As we have already observed, State Government cannot be separated from its Officers and/or Authorities. Under normal circumstances, the Government Pleader attached to the High Court or State Government Advocate authorised by the learned Government Pleader will have the authority to represent not only the State but also its Officers and/or Authorities until and unless specific instruction is given by the concerned Officers/Authorities to the learned Government Pleader for not representing them in any proceeding in the High Court. 15. 15. Therefore, service of notice upon the Government Pleader attached to the High Court will dispense with the requirements of service upon the respondent Officers/Authorities of the State Government unless the learned Government Pleader refuses to represent them in a particular case before the High Court upon receiving specific instruction. 16. The respondent no.3 herein admittedly never issued any such instruction to the learned Government Pleader for not representing him in any proceeding initiated in the High Court. 17. In the aforesaid circumstances, the State Government Advocate should also represent the said respondent no.3 since the respondent no.3 is an Officer of the Government of West Bengal. The concerned Government Advocate is, however, entitled to pray for sufficient time from the learned Judge for taking necessary instructions from the concerned Officer but as we have already said that the State Government Advocate will not disown the responsibility to represent the concerned Government Officer without being specifically instructed to do so. 18. For the aforementioned reasons, we hold that the State Government Advocate in the present case has also the authority to represent the respondent no.3 until and unless specifically instructed otherwise. 19. With the aforesaid observations and findings, we modify the impugned order under appeal passed by the learned Single Judge. 20. This application thus stands disposed of. 21. In view of the aforesaid order, no purpose will be served in keeping the appeal pending and, therefore, the appeal is also treated as on day’s list and 22. There will be no order as to costs. 23. Xerox plain copy of this order countersigned by the Assistant Registrar (Court) be given to the appearing parties on usual undertaking.